Thursday, September 25, 2003

Update: Commercial solicitation -- it's in, it's out, no wait!

First, the good--the Senate approved the ratification of the FTC's authority to create the do-not-call registry by a vote of 95-0 (see this New York Times article). It's amazing how quickly Congress can act when it wants to.

But another district judge found it unlawful, this time for First Amendment violations. The opinion from the District Court of Colorado may be found here. The court held that it was impermissible to distinguish between commercial and noncommercial speech for eliminating telephone calls to the home. The judge argued that the fundamental problem with the registry is that "the mechanism purportedly created by the FTC to effectuate consumer choice instead influences consumer choice, thereby entangling the government in deciding which speech consumers should here. This entanglement creates a regulatory burden on commercial speech." (p. 18)

The court recognized that there was a substantial public interest in limiting calls into one's castle, but found that the registry would only eliminate 40-60% of all solicitation calls, and is therefore under-inclusive. The under-inclusiveness, according to the court, is content restriction. The court rejected the FTC's justification for drawing a line between commercial and noncommercial calls, writing that "there is no doubt that unwanted calls seeking charitable contributions are as invasive to the privacy of someone sitting down to dinner at home as unwanted calls from commercial telemarketers." (p.24). While recognizing that noncommercial speech is generally afforded more protection under the First Amendment, the court held that "any attempt to distinguish between cmomercial and noncommercial speech solely because of commercial speech's lesser protected status under the Constitution attaches more importance to the distinction between commercial and noncommercial speech than cases warrant and seriously underestimates the value of commercial speech." (p. 25)

This opinion merely strengthens my belief that we should not be affording individual rights to corporations. I recognize that there will be some fuzzy lines that need to be drawn on occasion, but this is rediculous. I imagine that the Colorado judge can expect to receive a flurry of noncommercial solicitations to reconsider this ruling, as happened with the judge in Oklahoma according to this story in the Washington Post.

As a matter of public record, Judge Nottingham's number is (303) 844-5018.